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Supreme Court rules unmarried woman entitled to late partner’s pension in landmark cohabitation case


Family lawyer Norwich

In a landmark Supreme Court decision this week a woman has won the right to benefit from her partner’s pension on his death.

Denise Brewster and Lenny McMullan had lived together for 10 years and owned their home together. They became engaged on Christmas Eve 2009 but Mr McMullan unfortunately died two days later.

Mr McMullan had been a member of a public sector pension scheme for 15 years. If he and Ms Brewster were married she would have automatically benefitted from his pension scheme upon his death. However, because they were not married she was not automatically entitled to receive anything. In order to have been entitled to any payments Mr McMullan would have had to have expressly nominated her, which he had not done.

Ms Brewster argued that the need to complete the nomination form, because she was not married to Mr McMullan, was unlawful discrimination and a breach of her human rights.

The Supreme Court unanimously ruled that the nomination form was “unlawful discrimination” and Ms Brewster was entitled to the payments from Mr McMullan’s pension.

Ms Brewster said the decision from the Supreme Court “is likely to impact on discrimination against cohabitees across a wide range of areas not just pension rights”.

That is because at present the law does not provide for cohabiting couples in the same way as it does for married couples, in life, upon death and on separation.

For instance; when married couples pass away, even if they have not specifically made a Will gifting their estate to their spouse, the surviving spouse will benefit from their estate via the intestacy rules and will also usually receive a death benefit from their pension automatically.

However, if a cohabitee passes away without making a Will providing for their partner then, aside from any property owned as ‘joint tenants’ they would not stand to receive anything from their partner’s estate (unless they mount a successful legal challenge as a ‘dependent’ of the deceased). Until this week’s landmark decision that also meant that a surviving cohabitee would not usually receive any pension death benefit, unless they had been specifically nominated. Given the Supreme Court’s decision in Ms Brewster’s case, that could now all change.

The situation is similar when it comes to the breakdown of a relationship. The law in relation to married couples and unmarried couples is very different. With married couples all of the assets of the parties are taken into account whether owned jointly or solely and can include capital, pensions and incomes. These are then divided between the parties in an appropriate manner according to the Matrimonial Causes Act which takes into account factors such as the length of the relationship, contributions made by each of the parties (financial and non-financial), the reasonable needs of the parties and, above else, the interests of any minor children.

By contrast, when cohabitees separate the assets are usually divided according to ownership. There is a presumption that the legal owner of the asset will remain the sole owner unless the other party can show that they have a beneficial interest in it. This will usually only be applicable to capital assets and most commonly real property. There is no rule of sharing solely owned assets. In particular pension rights cannot be divided upon the breakdown of a relationship between unmarried couples.

The Law Society often considers, and makes proposals for, reform of the law relating to unmarried couples. Perhaps this latest Supreme Court decision will prompt the Law Society to consider reform once again.

If you have any queries or would like any advice surrounding the issue of cohabitation and your rights please contact Simon Willis on 01603 281110 or